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HomeMy WebLinkAbout1985-1201.Creighton.87-08-24IN TBE MATTER OF AR ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORB THE GRIEVANCE SETTLElIENT BOARD BETYEEN: BEPDRR: OPSEU (S. Creighton) GrieWX - and - TBR CROWN IN RIGHT OF ONTARIO Employer (Ilinistry of Transportation and Gommnications) P. Draper Vice-Chairman I. Pretidman Uember II. Roberts Member FOR TRE GRIEVOR: P. Lukasiewicz Counsel Gowling and Henderson Barristers and Solicitors FOR THE EKPLOYBU: K. Cribbie Staff Relations Advisor Ministry of Transportation and Comunications HEARING: nay 28, 1907 2 t DECISION The Grievor, Stephen Creighton, grieves that he was wrongfully denied employment by the Employer in that he was not offered employment in accordance with Article 3.20.1 of the Collective Agreement. The relevant provisions of Article 3 are: DEFINITION 3.17 A seasonal employee is an employee appointed for a period of at least eight (8) consecutive weeks to an annually recurring full-time position in the unclassified service in a ministry. For purposes of this definition full-time means a minimum of thirty-six and one-quarter (36 l/4) or forty (40) hours per week, as applicable. - PROBATIONARY~ PERIOD 3.18 .-: ~~~_~ The probationary period for a seasonal employee shall be two (2) full periods of seasonal employment.of at least eight (8) consecutive weeks each , worked in consecutive years in, the same position in the same ministry. ,--- ~ ~- _ SENIORITY_ 3.19.1 ., A seasonal employees seniority within a ministry will accumulate upon completion of his probationary period and shall include: a) all hours worked as a seasonal employee at the straight time rate: b) periods of authorized paid leave in'accordance with Section 3.31, Attendance Credits and Sick Leave. JOB SECURITY 3.20.1 Seasonal employees who have completed their probationary period shall be offered employment in their former positions in the following season on the basis of seniority. Under Article 84.2 the effective date of Articles 3.17, 3.18 and 3.20 is May 23, 1985, and the effective date of Article 3.19 is January 1, 1984. It is common ground that the Grievor is a seasonal employee as defined by Article 3.17: that he was employed as a checker/ jispatcher by the Ministry of Transportation and Communications from November 22, 1983 to April 10, 1984 and from October 20, 1984 to April 3 for the checker/dispatcher position held by the Griever in 198.3-84 and 1984-85 and worked until January 13, 1986; that that employee had not completed the probationary period defined in Article 3.18 and therefore had no seniority within the meaning of Article 3.19; and that the Grievor was hired for the same checker/dispatcher position on January 14,, 1986 and worked until April 25, 1986. The question for determination by the Board is whether or not, on October 21, 1985 the Grievor had completed his probationary period, had acquired seniority, and should have been offered the employment,for which the other employee was'hired. Article 3.18 clearly contemplates that there will be full C~"' riods of varying duration. Otherwise there would have been no need 'to impose the condition that only full periods of at least eight consecutive weeks wll count towards the completion of'the probationar> period. On the evidence before us the Grievor's seasonal employment I never had-then same commencement or termination date, nor was it ever for exactly the same period, in any two years. It is our opinion that the Grievor met the requirements of Article 3.19 by completing two full periods of seasonal employment of at least eight consecutive weeks each, worked in consecutive years in the same position in the same ministry, namely, November 22, 1983 to April lb, 1984 and Ocfober 20;1984 to April 12, 1985. His seniority therefore dates from January 1, 1984 and accordingly he had seniority on October BethTen January 1, 1984 and April ~10, 1984, the Grievor an unbroken period which exceeded the prescribed minimum of eight consecutive weeks. It is our conclusion that that period of seasonal employment and the period worked by the Grievor in 1984-85 together satisfy the conditions set out in Article 3.18. We~find that the Employer contravened Article 3.20.1 by not offering employment to the Grievor in his former position as of October 21, 1985. It is hereby ordered that the Employer, on or before September 15, 1987, pay to the Grievor the amount of the wages he would have received had he been employed by the ministry in the position Of checker/dispatcher from October 21, 1985 to January 13, 1986. The articles which are the sdbjest matter of the present _ /.a,. 4 , grievance first appear in the 1984-85 Collective Agreement between the Zarties and this is the first case requiring their interpretation to come before the Board. We are satisfied that the Employer has acted according to its honest view of the meaning and intent of the articles inquestion. In the circumstances, we decline to exercise our discretion to award interest as requested on behalf of the Grievor. See in this regard, Peters, 241/84. DATED at Toronto, this24th day of August, 1987. P. Draper Vice-Chairman I. Freedman Member H. Roberts Member